QUESTION: I feel like I am missing something on the McCardle case as it relates to the last line of the opinion, "...But this is an error. The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect the jurisdiction which was previously exercised." Section 14 of the Judiciary Act of 1789 states only that the judiciary can issue the writ for "the purpose of an inquiry into the cause of commitment." Conversely, the the Act of 1867 states that the Federal Courts can issue writs "in all cases where any person may be restrained of his or her liberty in violation of the Constitution." Thus, the "jurisdiction previously exercised" as noted by Justice Chase seems to be significantly more limited than the broad powers granted in the 1867 Act. That is, the powers prescribed in the 1789 and those taken away in the 1868 seem to be very far apart. Yet, if that is the case, it seems to me that Chase would have put up more of a fight? I am just wondering how much power the Court wielded to issue writs of habeus corpus prior to the 1867 and following the repeal in 1868. Was this is as big a loss as it appears?
ANSWER: This is a terrific question. But I'm not sure, at least based on these words alone, that I would draw the same conclusion. An inquiry into "the cause of commitment" might well include--one could say must include--an inquiry into whether that "cause" is consistent with the Constitution. If so, then the two provisions cited are providing jurisdiction to reach the same substantive questions. That said, I do not know for sure whether the two provisions were commensurate. But consider this: two years later, another southerner (Yerger) challenged his detention much like McCardle, but instead invoked the jurisdiction provided under the Judiciary Act of 1789. To my knowledge, his underlying substantive claims (about the unconstitutionality of his detention) were largely the same. And the Court held in Ex parte Yerger that there was jurisdiction to hear Yerger's appeal in the federal courts. (It then remanded the case to the lower court, at which point President Grant released him from custody, rendering the case moot and preventing the Supreme Court from issiuing an opinion on the merits that might endanger Reconstruction.)
In short, thus what McCardle accomplished (in addition to upholding certain uses of the Exceptions Clause, as I described in a prior post) was to force the detained ex-confederates to go through some longer, additional legal hoops. But it did not close off or alter the nature of the appellate review available at the Supreme Court. On this point, it is worth noting that the Yerger decision refers to the jurisidiction available under the February 1867 Act as "more convenient" than that available under the Judiciary Act of 1789, but it does not advert to any substantive differences in terms of what issues might be reviewed.
Again, a terrific question. I hope this serves as at least a partial answer.